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Mirian Pena, On Behalf of H.P., A Minor Child v. Michael J. Astrue

July 7, 2011

MIRIAN PENA, ON BEHALF OF H.P., A MINOR CHILD, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Dora L. Irizarry, United States District Judge:

MEMORANDUM & ORDER

Plaintiff Mirian Pena, on behalf of her minor son, H.P., filed an application for disability insurance benefits ("DIB") and supplemental security income ("SSI") under the Social Security Act ("Act") on October 4, 2007. By a decision dated November 2, 2009, the Administrative Law Judge ("ALJ") concluded that plaintiff was not disabled within the meaning of the Act. On April 1, 2010, the ALJ's decision became the Commissioner's final decision when the Appeals Council denied plaintiff's request for review. On June 8, 2010, plaintiff filed the instant action seeking judicial review of the denial of benefits. The Commissioner now moves for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c), seeking remand for further administrative proceedings. Plaintiff cross-moves for judgment on the pleadings, seeking reversal of the Commissioner's decision and remand solely for the calculation of benefits.

For the reasons set forth below, the Commissioner's motion is granted, the plaintiff's motion is denied, and the case is remanded to the Commissioner for further administrative proceedings consistent with this Memorandum and Order.

BACKGROUND

A. Non-medical and Testimonial Evidence

H.P. was born on October 4, 2000. (A.R.*fn1 at 133.) Plaintiff testified that H.P., at the age of ten months, banged himself on the head. (A.R. at 52.) At fourteen months, he would throw himself on the floor and hit himself on the head, and was not speaking at the age of two. Id. Sometime around the age of two, H.P was enrolled in an early intervention school. (A.R. at 53.) At the early intervention school, H.P. received speech and physical therapy, and could not walk well or grab things well. Id. H.P. would also leave the apartment while his mother slept. (A.R. at 53.) Plaintiff also testified that H.P. began taking medication in 2005, but plaintiff stopped administering the medication when someone told her that the medication was not good for the child. (A.R. at 55.) The medication was resumed sometime in 2008, and when medicated, H.P. was more tranquil and easier to manage. (A.R. at 55.) H.P.'s mother testified that, as a result of the medication, his grades and behavior also improved, but not yet to an acceptable level. Id. At school, H.P. would throw papers at other students as well as bang on their desks. (A.R. at 56.) At home, H.P. could bathe and play with other children in the street outside, but only when supervised by his mother. (A.R. at 57-58.) Plaintiff also testified that H.P. had trouble sleeping and wet the bed each night. (A.R. at 63.)

At the hearing before the ALJ, H.P. testified that school was "good" and that he did not have arguments with other children. A.R. at 87-88. When asked if he still pushed others to be first in line, he responded, "I don't do that anymore." A.R. at 88. H.P. indicated that he did his homework, and generally followed the teacher's directions. A.R. at 89.

An Individualized Education Program (IEP) dated April 26, 2007 indicated a speech impairment with receptive and expressive language delays. (A.R. at 223.) H.P. could ask and answer questions using simple and complex sentences, but his language production did not demonstrate mastery of syntactical rules that are "typically used by children his age." Id. H.P. could follow one- and two-step directives, but showed deficits in semantics and vocabulary, inconsistently responded to wh- questions, and had difficulty with metalinguistic tasks such as problem solving and making inferences. (A.R. at 223.) H.P. also was described as a "friendly, happy, and energetic child." (A.R. at 224.) A second IEP dated April 17, 2008, noted that H.P. had made progress since the beginning of that school year and showed ability to improve in all language areas. (A.R. at 290.) His behavior was noted to have improved, but he still showed signs of social immaturity. (A.R. at 291.) The 2008 IEP recommended that H.P.'s speech therapy continue. No behavior intervention plan was required. Id.

H.P.'s teacher, Ms. Almonte, completed a teacher questionnaire on December 18, 2007. (A.R. at 165-72.) Ms. Almonte indicated that H.P. had an obvious problem waiting to take turns and was rather impulsive. (A.R. at 167.) She also indicated that H.P had an obvious problem expressing anger appropriately. (A.R. at 168.) Ms. Almonte noted no problem in maneuvering around the classroom and manipulating objects. (A.R. at 169.) H.P. had serious problems with being patient, identifying and appropriately asserting emotional needs, and responding appropriately to changes in his own mood. (A.R. at 170.) Finally, Ms. Almonte described H.P. as a sweet boy who loved to read, enjoyed being in school, and got along well with his classmates, though noting problems with releasing his frustration appropriately. (A.R. at 172.)

B. Medical and Psychiatric Evidence

Evidence from school-based specialists, treating doctors, and consulting doctors was entered into the administrative record. On July 31, 2003, H.P. was evaluated by Maria Kober, a bilingual speech language pathologist. (A.R. at 244.) On the Auditory Comprehension section of the Preschool Language Scale-4, H.P. received a standard score of 84, indicating receptive language skills to be borderline within the mean to mildly delayed. (A.R. at 245.) On the Expressive Communication section of the same test, H.P. revceived a standard score of 69, indicating expressive language skills to be moderately to severely delayed and two standard deviations below the mean. (A.R. at 246.) Speech language therapy was recommended. (A.R. at 247.)

On August 5, 2003, H.P. received a bilingual educational evaluation from Ana Wegmann, M.S. Spec. Ed. (A.R. at 248-49.) H.P. was found to have delays in the areas of cognitive (28% delay) and fine motor skills (25%), with significant delays in speech and language skills (33%). Id. H.P. was recommended to receive structured bilingual education with large and small group activities, as well as individual assistance in areas of delay. (A.R. at 249.)

Irene Giusti, Ph.D., prepared a bilingual psycho-educational evaluation on September 3, 2003. (A.R. at 250-54.) During observations of H.P. at school, Dr. Giusti noted that H.P.'s verbal comprehension was very low, he had a slow reaction time, and appeared to be lethargic. (A.R. at 250.) The Bayley Scales of Infant Development showed that H.P. had a mental age similar to a 22-month-old child, placing him in the low range for his age. (A.R. at 251.) On the Vineland Adaptive Scales test, H.P.'s interpersonal relationships score (part of the socialization domain) was the equivalent of a ten-month-old child. (A.R. at 252.) H.P.'s coping skills score (also part of the socialization domain) was the equivalent of an eleven-month-old child. Id.

H.P.'s motor skills domain scores were adequate, but his scores in the communication, daily living skills, and socialization domains were either low or moderately low. Id. Dr. Giusti recommended educational services in ...


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